Oct. 28, 2014, PNLR E-Newsletter | The American Association For Justice Archive

Oct. 28, 2014, PNLR E-Newsletter

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Eleventh Circuit upholds Florida med-mal law allowing ex parte communications

Alyssa E. Lambert

The Eleventh Circuit upheld part of a 2013 Florida medical malpractice law that allows essentially unlimited ex parte communications between all defense-related counsel and witnesses and a plaintiff’s health care providers during the 90-day presuit period. Attorneys worry the law will intimidate treating physicians, discourage plaintiffs from bringing med-mal actions, and encourage other states to pass similar statutes. (Murphy v. Dulay, 2014 WL 5072710 (11th Cir. Oct. 10, 2014).)

In Florida, a potential plaintiff must provide prospective defendants written notice of intent to initiate litigation and wait 90 days before filing suit. Last year, new requirements were added: The potential plaintiff must execute an authorization allowing the defendant doctor, lawyer, insurer, and expert witnesses and their counsel access to all treating physicians’ records from the two years prior to the alleged incident. Under HIPAA, patients’ private health information can be disclosed during litigation only pursuant to a court order or subpoena, or during discovery under a qualified protective order defining the disclosure parameters.

The authorization also allows the defense to interview the treating providers without the patient or lawyer present and with little notice. The plaintiff’s attorney has 15 days to arrange the interview once the defendant doctor gives notice to the plaintiff; the defendant must give the plaintiff only 72 hours’ notice for subsequent interviews. If the plaintiff fails to arrange the interview, the defendant can do it anyway. The presuit notice is void if the plaintiff does not provide authorization or revokes it after signing.

Four constitutional challenges were filed—two in state court and two in federal—alleging HIPAA expressly preempts the law because it allows unfettered ex parte communications and discovery during the presuit period. They also alleged the authorization does not comply with HIPAA. In this case, Glen Murphy contemplated suing Adolfo Dulay for medical negligence and challenged the law in federal district court. The state intervened, and the defendants moved to dismiss, arguing the plaintiff lacked standing and there was no case or controversy. Murphy moved for a temporary restraining order and a preliminary injunction against enforcing the law.

The district court concluded that HIPAA expressly preempts the statute and enjoined Dulay and anyone associated with him from conducting ex parte interviews with the plaintiff’s other health care providers, except as HIPAA authorized, as Trial News previously reported.

The Eleventh Circuit ruled that the Florida authorization complies with HIPAA, and there is no preemption because federal and state law do not conflict. Although the plaintiff argued the authorization violates HIPAA because it is irrevocable, the court said the authorization is revocable but with a consequence: Presuit notice is deemed retroactively void. The court also held that the requirement to list all treating providers from a two-year period “protects a plaintiff’s privacy by resolving an ambiguity about which providers a defendant may contact.”

“If an individual does not wish to execute such an authorization, he does not have to. He is, however, precluded from using the Florida courts to obtain relief through a medical negligence lawsuit against a health care provider,” the three-judge panel wrote.

Robert Peck, president of the Center for Constitutional Litigation in Washington, D.C., and lead counsel in the lawsuits, said the decision was misguided. “If you’re doing a preemption analysis, you’re supposed to start with the most relevant portion of the federal regulations and see whether the state law is more stringent in its protection of privacy, and this law clearly is not,” he said. “The Eleventh Circuit did not make this evaluation. It simply decided this was a valid authorization, and there is no preemption issue.”

“This seems to be the trend—let’s punish the people who have the temerity to assert their legal rights,” said Miami attorney David Buckner, who also represents Murphy. “It’s not a good direction for our civil justice system to be heading.”

The plaintiffs are reviewing their appellate options, but Peck said the ruling creates a split with the Fourth and Seventh Circuits, as well as with the Georgia, Michigan, and Missouri Supreme Courts. A constitutional challenge is pending in one of the state cases. (Weaver v. Myers, No. 2013 CA 001714 (Fla., Escambia Co. Cir. July 1, 2013).)

Buckner and Peck agree the law could have a chilling effect on med-mal lawsuits.

“A patient’s doctors can be swayed easily when their insurers are interviewing them, because the insurers can suggest that lack of cooperation can affect the doctor’s own malpractice insurance premiums. That’s why courts have said in the past that ex parte communications should not be allowed,” Peck said. “In addition, the fact that you will have to reveal treating physicians two years prior to the incident may mean handing information to the other side, such as evidence of psychological treatment and sexual problems, that have no bearing on the underlying case. This would discourage people from bringing lawsuits.”

“This law is designed to create barriers so that legitimate claims are not brought, and this is not the purpose of the justice system,” Buckner said.